Pub Date : 2023-10-12DOI: 10.21684/2412-2343-2023-10-3-106-121
V. Kvanina, E. Kovalenko, G. Vypkhanova
The Concept of Sustainable Development is one of the basic principles of the modern world. An increasing number of fields are coming under regulation governed by this concept. Recent updates to the environmental agenda have resulted in growing demands for increased environmental responsibility on the part of states and businesses. The global nature of environmental problems, their diversity and scale, and, at times, the irreversibility of the consequences of the negative environmental impact of the economy often provide for the consolidation of efforts by the state and business, particularly, through the implementation of public-private partnership (PPP) mechanisms. This article focuses on the pros and cons of legislation in the BRICS countries in the area of PPP practice in general and in environmental protection in particular. The data and PPP practices have been collected from the World Bank, UNCITRAL, and other official national sources related to PPP. An analysis of the legislation on PPPs in the BRICS countries indicates a lack of uniformity in the legal regulation of the relationships arising from this partnership, as well as a lack of specific legislation on PPPs specifically addressing environmental protection. The analysis shows that only those BRICS countries using the common law system (South Africa and India) have the instruments available to allow potential investors to fully assess the PPP model as it currently exists in a particular country. This practice developed as a result of a more flexible approach to the regulation of public relations. Undoubtedly, one of the many advantages of this approach is the ability to adjust the PPP system and model all of the known forms and types of PPPs in accordance with the specific needs of society and the state. The lack of flexibility, for example, of the Russian legislation on PPP regulation, has led to the limited forms or types and objects of PPPs, which is inconsistent with the modern needs of society and the state to achieve the UN Sustainable Development Goals.
{"title":"Improving the Legislation on Public-Private Partnerships in Environmental Protection in the BRICS Countries","authors":"V. Kvanina, E. Kovalenko, G. Vypkhanova","doi":"10.21684/2412-2343-2023-10-3-106-121","DOIUrl":"https://doi.org/10.21684/2412-2343-2023-10-3-106-121","url":null,"abstract":"The Concept of Sustainable Development is one of the basic principles of the modern world. An increasing number of fields are coming under regulation governed by this concept. Recent updates to the environmental agenda have resulted in growing demands for increased environmental responsibility on the part of states and businesses. The global nature of environmental problems, their diversity and scale, and, at times, the irreversibility of the consequences of the negative environmental impact of the economy often provide for the consolidation of efforts by the state and business, particularly, through the implementation of public-private partnership (PPP) mechanisms. This article focuses on the pros and cons of legislation in the BRICS countries in the area of PPP practice in general and in environmental protection in particular. The data and PPP practices have been collected from the World Bank, UNCITRAL, and other official national sources related to PPP. An analysis of the legislation on PPPs in the BRICS countries indicates a lack of uniformity in the legal regulation of the relationships arising from this partnership, as well as a lack of specific legislation on PPPs specifically addressing environmental protection. The analysis shows that only those BRICS countries using the common law system (South Africa and India) have the instruments available to allow potential investors to fully assess the PPP model as it currently exists in a particular country. This practice developed as a result of a more flexible approach to the regulation of public relations. Undoubtedly, one of the many advantages of this approach is the ability to adjust the PPP system and model all of the known forms and types of PPPs in accordance with the specific needs of society and the state. The lack of flexibility, for example, of the Russian legislation on PPP regulation, has led to the limited forms or types and objects of PPPs, which is inconsistent with the modern needs of society and the state to achieve the UN Sustainable Development Goals.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135969466","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-12DOI: 10.21684/2412-2343-2023-10-3-65-86
E. P. Ribeiro, S. Golovanova
In non-merger antitrust cases efficiencies should play a significant role when authorities decide on cases as many potentially anticompetitive practices may have pro-competition effects, according to economic theory. In many jurisdictions rule of reason or effect based legal standard is claimed to be the policy adopted according to the own authorities. For such legal standards, considering efficiencies is part of the standard analysis protocol. We review the practice of efficiency defense in antitrust cases in selected BRICS and European countries. The case study shows that efficiencies are considered in rulings less often than expected. Similar arguments are used across countries, suggesting a common underlying economic analysis across jurisdictions that may have different legal institutions. We have employed the cross-country comparison based on Brazil, Russia, India, and South Africa cases. We also summarize the main reasons for efficiencies analysis not to be able to reverse the concluded anticompetitive effect from a business practice.
{"title":"The Practice of Efficiency Defense in Antitrust Cases: A Comparison of BRICS and European Cases","authors":"E. P. Ribeiro, S. Golovanova","doi":"10.21684/2412-2343-2023-10-3-65-86","DOIUrl":"https://doi.org/10.21684/2412-2343-2023-10-3-65-86","url":null,"abstract":"In non-merger antitrust cases efficiencies should play a significant role when authorities decide on cases as many potentially anticompetitive practices may have pro-competition effects, according to economic theory. In many jurisdictions rule of reason or effect based legal standard is claimed to be the policy adopted according to the own authorities. For such legal standards, considering efficiencies is part of the standard analysis protocol. We review the practice of efficiency defense in antitrust cases in selected BRICS and European countries. The case study shows that efficiencies are considered in rulings less often than expected. Similar arguments are used across countries, suggesting a common underlying economic analysis across jurisdictions that may have different legal institutions. We have employed the cross-country comparison based on Brazil, Russia, India, and South Africa cases. We also summarize the main reasons for efficiencies analysis not to be able to reverse the concluded anticompetitive effect from a business practice.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135970095","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-11DOI: 10.21684/2412-2343-2023-10-3-4-18
M. Aydemir, A. F. Aysan
The concept of equity-based crowdfunding (ECF) has become one of the latest innovative financing alternatives for startups and SMEs throughout the world during the last decade. This article aims to assess the revised crowdfunding directive of Turkey and its role in the development of the ecosystem. The concept of ECF is elucidated with its stakeholders, challenges, and solutions. Then the effect of the revised regulation is analyzed through a case study of the first active ECF platform in Turkey, Fonbulucu. Finally, the article discusses the potential improvements to the existing directive considering the practices of Fonbulucu.
{"title":"Regulating the Unregulated: The Advent of Fintech Regulations and Their Impacts on Equity-Based Crowdfunding","authors":"M. Aydemir, A. F. Aysan","doi":"10.21684/2412-2343-2023-10-3-4-18","DOIUrl":"https://doi.org/10.21684/2412-2343-2023-10-3-4-18","url":null,"abstract":"The concept of equity-based crowdfunding (ECF) has become one of the latest innovative financing alternatives for startups and SMEs throughout the world during the last decade. This article aims to assess the revised crowdfunding directive of Turkey and its role in the development of the ecosystem. The concept of ECF is elucidated with its stakeholders, challenges, and solutions. Then the effect of the revised regulation is analyzed through a case study of the first active ECF platform in Turkey, Fonbulucu. Finally, the article discusses the potential improvements to the existing directive considering the practices of Fonbulucu.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136212927","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-11DOI: 10.21684/2412-2343-2023-10-3-19-48
W. Zhang
This article examines the relationship between labour regulation and self-employment in the BRICS countries by using data from the Labour Regulation Index developed at the Centre for Business Research at Cambridge University (CBR-LRI) and the ILOSTAT collected and developed by the ILO Department of Statistics from 1992 to 2013. The research is conducted in two strands. In the first strand, the study examines the relationship between labour regulation and self-employment at the overall level. The empirical results obtained suggest that a negative relationship exists in Brazil, China, and South Africa, while a positive relationship exists in Russia and South Africa. This implies that, as the relative strength of labour regulation increases in Brazil, China, and South Africa, fewer workers are likely to be engaged in self-employment. In Russia and India, however, the result implies that more workers are likely to be engaged in self-employment with relatively stronger labour regulation. In the second strand, the study provides a breakdown of labour regulation and self-employment into measures of their constituent components, including the regulation on different forms of employment, working time, dismissal of employees, employee representation, and industrial actions and employers’ and vulnerable employment. The findings suggest that not all five aspects of labour regulation have a significant effect on employers’ and vulnerable employment in the BRICS countries except for Russia. The most influential or the only aspect that has a significant effect on employers’ employment is the regulation on different forms of employment in Brazil and South Africa (negative) and Russia (positive), and the regulation on industrial actions in India (positive) and China (negative), while the most influential or the only aspect affecting vulnerable employment is the regulation on dismissal in Brazil (negatively), the regulation on employee representation in Russia (positively), the regulation on different forms of employment in India (positively), the regulation on industrial actions in China (negatively), and the regulation on working time in South Africa (positively).
{"title":"Does the Strength of Labour Regulation Affect Self-Employment? Evidence from the BRICS Countries","authors":"W. Zhang","doi":"10.21684/2412-2343-2023-10-3-19-48","DOIUrl":"https://doi.org/10.21684/2412-2343-2023-10-3-19-48","url":null,"abstract":"This article examines the relationship between labour regulation and self-employment in the BRICS countries by using data from the Labour Regulation Index developed at the Centre for Business Research at Cambridge University (CBR-LRI) and the ILOSTAT collected and developed by the ILO Department of Statistics from 1992 to 2013. The research is conducted in two strands. In the first strand, the study examines the relationship between labour regulation and self-employment at the overall level. The empirical results obtained suggest that a negative relationship exists in Brazil, China, and South Africa, while a positive relationship exists in Russia and South Africa. This implies that, as the relative strength of labour regulation increases in Brazil, China, and South Africa, fewer workers are likely to be engaged in self-employment. In Russia and India, however, the result implies that more workers are likely to be engaged in self-employment with relatively stronger labour regulation. In the second strand, the study provides a breakdown of labour regulation and self-employment into measures of their constituent components, including the regulation on different forms of employment, working time, dismissal of employees, employee representation, and industrial actions and employers’ and vulnerable employment. The findings suggest that not all five aspects of labour regulation have a significant effect on employers’ and vulnerable employment in the BRICS countries except for Russia. The most influential or the only aspect that has a significant effect on employers’ employment is the regulation on different forms of employment in Brazil and South Africa (negative) and Russia (positive), and the regulation on industrial actions in India (positive) and China (negative), while the most influential or the only aspect affecting vulnerable employment is the regulation on dismissal in Brazil (negatively), the regulation on employee representation in Russia (positively), the regulation on different forms of employment in India (positively), the regulation on industrial actions in China (negatively), and the regulation on working time in South Africa (positively).","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136213157","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-08DOI: 10.21684/2412-2343-2023-10-2-184-189
N. Smetanin
.
{"title":"New Impulses for the Development of the Shanghai Cooperation Organization: An Academic View","authors":"N. Smetanin","doi":"10.21684/2412-2343-2023-10-2-184-189","DOIUrl":"https://doi.org/10.21684/2412-2343-2023-10-2-184-189","url":null,"abstract":"<jats:p>.</jats:p>","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":"83 1-3","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41296680","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-08DOI: 10.21684/2412-2343-2023-10-2-68-100
L. Koen
There has been a growing interest in the extent to which international investment law imposes an obligation on the state to compensate for losses arising from an armed conflict. This contribution explores the prevalence of war clauses that hold the state liable to pay compensation for war losses without the investor needing to prove fault. The contribution considers a recent case against Syria in which an investor was permitted to rely on such a war clause in another treaty through the most favoured nation (MFN) clause. The contribution finds that MFN clauses substantially increase the number of investors who can rely on unqualified extended war clauses. It considers unqualified extended war clauses and the extent to which other investors can rely on them through an MFN clause in Cameroon, Syria and Yemen. It then considers the role that the BRICS countries can play in bringing about the necessary reforms to unqualified extended war clauses. It argues that these reforms are urgently needed as these states emerging from armed conflict can scarcely afford to meet their people’s most essential developmental needs, let alone virtually unlimited liability to foreign investors.
{"title":"Opening Pandora’s Box: Strict Liability Under Unqualified Extended War Clauses in International Investment Law","authors":"L. Koen","doi":"10.21684/2412-2343-2023-10-2-68-100","DOIUrl":"https://doi.org/10.21684/2412-2343-2023-10-2-68-100","url":null,"abstract":"There has been a growing interest in the extent to which international investment law imposes an obligation on the state to compensate for losses arising from an armed conflict. This contribution explores the prevalence of war clauses that hold the state liable to pay compensation for war losses without the investor needing to prove fault. The contribution considers a recent case against Syria in which an investor was permitted to rely on such a war clause in another treaty through the most favoured nation (MFN) clause. The contribution finds that MFN clauses substantially increase the number of investors who can rely on unqualified extended war clauses. It considers unqualified extended war clauses and the extent to which other investors can rely on them through an MFN clause in Cameroon, Syria and Yemen. It then considers the role that the BRICS countries can play in bringing about the necessary reforms to unqualified extended war clauses. It argues that these reforms are urgently needed as these states emerging from armed conflict can scarcely afford to meet their people’s most essential developmental needs, let alone virtually unlimited liability to foreign investors.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":"214 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135795077","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-08DOI: 10.21684/2412-2343-2023-10-2-5-36
A. Vylegzhanin, D. Ivanov, M. Milyukova
The growing influence of renewable energy in the economy raises concerns about the need for perfecting the relevant international legal regime so as to satisfy all the stakeholders concerned. This article analyzes the relevant legal position of Russia as one of the largest exporters of energy-related products, while focusing on cooperation in this area as the BRICS Energy Prospects. The research reveals a number of findings: Russian Energy Policy has so far cautiously supported the promotion of renewable energy internationally in the context of energy efficiency and energy security; nevertheless, Russia has demonstrated a very restrained approach to the development of legally binding instruments on the matter. The authors conclude that it may be viable to find a reasonable “compromise of compromises” for the evolving international legal regime of renewable energy, and if this were to be accomplished, BRICS could assume a leading international position for the creation of such a regime.
{"title":"Renewable Energy in International Law: The Russian Perspective for Developing a Common BRICS Approach","authors":"A. Vylegzhanin, D. Ivanov, M. Milyukova","doi":"10.21684/2412-2343-2023-10-2-5-36","DOIUrl":"https://doi.org/10.21684/2412-2343-2023-10-2-5-36","url":null,"abstract":"The growing influence of renewable energy in the economy raises concerns about the need for perfecting the relevant international legal regime so as to satisfy all the stakeholders concerned. This article analyzes the relevant legal position of Russia as one of the largest exporters of energy-related products, while focusing on cooperation in this area as the BRICS Energy Prospects. The research reveals a number of findings: Russian Energy Policy has so far cautiously supported the promotion of renewable energy internationally in the context of energy efficiency and energy security; nevertheless, Russia has demonstrated a very restrained approach to the development of legally binding instruments on the matter. The authors conclude that it may be viable to find a reasonable “compromise of compromises” for the evolving international legal regime of renewable energy, and if this were to be accomplished, BRICS could assume a leading international position for the creation of such a regime.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42169359","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-08DOI: 10.21684/2412-2343-2023-10-2-156-183
V. Gavrilenko, V. Shenshin, V. Gavrilenko, V. Shenshin
This article discusses the currently relevant direction of the ongoing reform of the “regulatory guillotine.” Specifically, the article focuses on the development of new trends in the regulation of control and supervisory activities. The reasons for the reform, its goals and objectives, as well as the results achieved, are analyzed. It is concluded that the key reason for the launch of the “regulatory guillotine” is the problem of redundancy and moral obsolescence of the regulatory framework. Furthermore, the current state of control and supervision activities carried out by the public authorities of the Russian Federation is characterized, trends are analyzed and the results of the ongoing reforms are summarized. One of the main problems in the implementation of the reform is corruption. Excessive bureaucratization of control and supervisory activities is highlighted as a key factor influencing the transition to electronic document management. In connection with the identified problems, the following potential areas for future research have been identified: the introduction and legitimization of electronic document management, the reduction of corruption, the impossibility of withdrawing from the reform of some departments, the identification of all kinds of threats and so on. In evaluating the effectiveness of the activities of control and supervisory bodies in foreign countries, the emphasis has shifted away from assessing the actual number of inspections, violations detected, fines and penalties imposed, open criminal cases, the amounts of illegally spent public funds returned to the budget, etc., and to assessing the “quantity” and the “quality” of the facts revealed and the events prevented in advance, which in one way or another contained a potential threat to the security of the state and society. It was thus implied that there was a risk of not achieving socially significant indicators (results), on the basis of which society ultimately evaluates the activities of government bodies in general and the activities of control and supervisory bodies in particular.
{"title":"Control and Supervisory Activities as an Institute of Administrative Law","authors":"V. Gavrilenko, V. Shenshin, V. Gavrilenko, V. Shenshin","doi":"10.21684/2412-2343-2023-10-2-156-183","DOIUrl":"https://doi.org/10.21684/2412-2343-2023-10-2-156-183","url":null,"abstract":"This article discusses the currently relevant direction of the ongoing reform of the “regulatory guillotine.” Specifically, the article focuses on the development of new trends in the regulation of control and supervisory activities. The reasons for the reform, its goals and objectives, as well as the results achieved, are analyzed. It is concluded that the key reason for the launch of the “regulatory guillotine” is the problem of redundancy and moral obsolescence of the regulatory framework. Furthermore, the current state of control and supervision activities carried out by the public authorities of the Russian Federation is characterized, trends are analyzed and the results of the ongoing reforms are summarized. One of the main problems in the implementation of the reform is corruption. Excessive bureaucratization of control and supervisory activities is highlighted as a key factor influencing the transition to electronic document management. In connection with the identified problems, the following potential areas for future research have been identified: the introduction and legitimization of electronic document management, the reduction of corruption, the impossibility of withdrawing from the reform of some departments, the identification of all kinds of threats and so on. In evaluating the effectiveness of the activities of control and supervisory bodies in foreign countries, the emphasis has shifted away from assessing the actual number of inspections, violations detected, fines and penalties imposed, open criminal cases, the amounts of illegally spent public funds returned to the budget, etc., and to assessing the “quantity” and the “quality” of the facts revealed and the events prevented in advance, which in one way or another contained a potential threat to the security of the state and society. It was thus implied that there was a risk of not achieving socially significant indicators (results), on the basis of which society ultimately evaluates the activities of government bodies in general and the activities of control and supervisory bodies in particular.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47022268","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-08DOI: 10.21684/2412-2343-2023-10-2-123-155
Shantanu Pachahara
International arbitration has flourished as a private adjudicatory forum and is consistently evolving because of its versatile nature, assimilating the needs of modern arbitration users. Arbitration institutes have bent over backward for the development of international arbitration. All jurisdictions, through sporadic amendments, upgrade their curial law in alignment with the current global arbitration norms. The leading jurisdictions of Southeast Asia, specifically Singapore, Malaysia, and Hong Kong, through timely updates in their curial law and atonement of their premier arbitration institute’s policies incorporating the recent trends, continue to grow and rival each other as regional players in international arbitration. Keeping in mind India’s position in the global market, it is about time that India reserves its name among the leading arbitration hubs in Southeast Asia. Upon consideration of the trifecta of the curial law, the role of the premier arbitral institution, and the deference of the judiciary of a leading arbitration hub, the author through critical analysis, coherent reasoning, and statistical interpretation of data attempts to unveil the following questions raised. Firstly, whether India’s endeavour to strengthen and reinforce institutional arbitration in India vide the Amendment Act, 2019 would derive the desired result. Secondly, whether India’s attempt to become an international hub of arbitration that could rival Singapore, Hong Kong, and Malaysian arbitration institutes would be successful. Consequently, India’s attempt to march alongside the leading arbitral forces in Southeast Asia is like a lucid dream having the potential of manifestation.
{"title":"Institutional Arbitration: India’s Attempt to Transpire as an International Hub of Arbitration in Southeast Asia","authors":"Shantanu Pachahara","doi":"10.21684/2412-2343-2023-10-2-123-155","DOIUrl":"https://doi.org/10.21684/2412-2343-2023-10-2-123-155","url":null,"abstract":"International arbitration has flourished as a private adjudicatory forum and is consistently evolving because of its versatile nature, assimilating the needs of modern arbitration users. Arbitration institutes have bent over backward for the development of international arbitration. All jurisdictions, through sporadic amendments, upgrade their curial law in alignment with the current global arbitration norms. The leading jurisdictions of Southeast Asia, specifically Singapore, Malaysia, and Hong Kong, through timely updates in their curial law and atonement of their premier arbitration institute’s policies incorporating the recent trends, continue to grow and rival each other as regional players in international arbitration. Keeping in mind India’s position in the global market, it is about time that India reserves its name among the leading arbitration hubs in Southeast Asia. Upon consideration of the trifecta of the curial law, the role of the premier arbitral institution, and the deference of the judiciary of a leading arbitration hub, the author through critical analysis, coherent reasoning, and statistical interpretation of data attempts to unveil the following questions raised. Firstly, whether India’s endeavour to strengthen and reinforce institutional arbitration in India vide the Amendment Act, 2019 would derive the desired result. Secondly, whether India’s attempt to become an international hub of arbitration that could rival Singapore, Hong Kong, and Malaysian arbitration institutes would be successful. Consequently, India’s attempt to march alongside the leading arbitral forces in Southeast Asia is like a lucid dream having the potential of manifestation.","PeriodicalId":41782,"journal":{"name":"BRICS Law Journal","volume":" ","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46129691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-08DOI: 10.21684/2412-2343-2023-10-2-37-67
D. Wei, A. Rafael
As a platform of cooperation among its member states, questions of whether or how the BRICS alliance can influence and shape the global governance system and improve their internal governance systems have often been raised. In the process of exploring the role that the law can play in this context, comparative studies on the laws of the BRICS member states, particularly in the defined areas of cooperation, are an important perspective to be addressed in order to be able to contribute to the improvement of their internal governance systems. However, much work remains to be done on this perspective. This article partially fills this gap by conducting a comparative study related to one of the BRICS areas of cooperation – sustainable development – between two of its members: China and Brazil. Specifically, it compares how both states, as stakeholders, use the legal regime of liability for environmental infractions to influence the green governance of companies. The article, therefore, uses comparative legal methodology, using as its objects of research relevant legal provisions on legal liability for environmental infractions gathered from the legal systems of China and Brazil. The adoption of strict civil liability, liability for environmental damages per se and the extension of criminal liability to legal persons are among the similarities found. As for the differences, it finds that, as a principle, Chinese law shields directors and senior officers from liability toward third parties, while Brazilian law fully extends such liability to these entities; additionally, in the Chinese legal system, the burden of disproving causality between the harm and the activity that caused it falls upon the actor, while the Brazilian legal system adopts a double-standard approach for collective suits and individual suits; and finally, the Chinese law imposes a legal obligation to adopt what, in effect, is close to a corporate environmental management system, while the Brazilian legal system lacks a similar mandate.
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